102-NLR-NLR-V-61-THAMBIAH-Appellant-and-SINNATHAMBY-Respondent.pdf
421
WEERASOORIYA, J.—Thambiah v. Sinnathamby
Present: Weerasooriya, J., and Sansoni, S.
THAMBIAH, Appellant, and SINNATHAMBY, RespondentS. C. 723—D. C. Jaffna, 10179[L
Partition action—Land outside the corpus—Claim for a right of way across it—Notpermissible—Partition Act, No. IS of 1951.
la a partition action a declaration cannot be obtained that a land outsidethe land to be partitioned is subject to a servitude.
J^LPPEAX from a judgment of the District Court, Jaffna.
Thiagalingam, Q.C., with V. Arularribalam and S. Thangarajah, forplaintiff-appellant.
S. J. V. Ghelvanayalcam, Q.C., with V. Ratnasabapathy, for 3rddefendant-respondent.
Cur. adv. wilt.
January 21, 1958. Weeb.asoobi v A, J.—
The substantial point involved in this appeal is in regard to the rightof way claimed by the plaintiff-appellant along the points XYZ in PlanPI as a means of access from his land on the south, depicted as lots 6and 7, to the public lane on the north through the by-lane representedby lot 5.
The plaintiff filed this action as a co-owner for the partition of the landdepicted as lots 6 and 7 in Plan PI. The only other co-owner is the2nd defendant. There is no dispute as regards their respective shares.The plaintiff also claimed a declaration that the land is entitled to aright of way as stated above. The 3rd defendant has been joined as aparty because he is the owner of lots 2 and 3 within which XYZ fall.Lots 2 and 3 form a separate land to the north of the plaintiff’s land.
It is not dear how in a partition action a declaration can be obtainedthat a land outside the land to he partitioned is subject to a servitude,for this in effect is what the plaintiff seeks. Our attention was drawn byMr. Chelvanayakam who appeared for the 3rd defendant-respondent tothe case of Kanthia v. Sinnatarriby 1 where it was held that such adeclaration could not he granted. The position seems to be the sameunder the Partition Act, No. 16 of 1951, which governs the present action.On this ground alone, therefore, the declaration sought for by theplaintiff should have been refused.
But as the point was not taken at the trial the learned trial Judgeconsidered the matter on its merits and arrived at the conclusion thatthe plaintiff had failed to establish his right to a pathway along XYZ.The basis on which the plaintiff claims the pathway is a grant from
K.Vinasv. the 3rd defendant’s father, who originally owned lots 6 and 7
1 {19 IS) 2BaL Notes of Cases 19.
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WEERASOOB.XYA, J.—Thambiah v. Sinnathcmiby
and also lots 1—5, 8 and 9 in Flan FI as one land of 46£ lachams.. By P*>of 1907 Vinasy transferred an extent of about 20 lachams on the southern-side from this land (and now represented by lots 6 and 7 in FI) to his-danghter Vallipillai by way of dowry. In doing so he reserved for theuse of the grantee a strip of land four cubits wide out of another portionof his land to the north in extent 2^ lachams as a means of access to thepublic lane farther north. At the time of the execution of P5 there weretwo lands forming the northern boundary of the land transferredthereon. One of those two lands is represented by lots 4, 8 and 9 inFlan FI and had been already transferred by Vinasy to the 3rddefendant on F4. The other land (exclusive of the strip referred to)consisted of lots 2 and 3 in Flan PI and was still owned by Vinasy.That is the land described as “ the northern boundary land belonging tothe first named of us ” in the clause in F5 in which the right of way isgranted in the following terms : “ together with the right of path fourcubits wide running from the public lane on the northern side along theeastern boundary of the northern boundary land belonging to the first-named of us, for people, cattle and sheep to pass and re-pass to and fromthis land It is to be noted that in the subsequent dealing with thatland by Vinasy on P8 in favour of the 3rd defendant a path four cubitswide running along its eastern boundary is specially excluded. Thisseems to be the same strip reserved in P5 as a means of access (throughthe by-lane, lot 5) to the public lane on the north from the landtransferred on F5.
There is, thus, much to be said in favour of the contention ofJdr. Thiagalingam, who appeared for the plaintiff appellant, that a pathwayas a means of access from his client’s land on the south to the public lanowas the subject of a specific grant by the original owner Vinasy on F5and F8. He also contended that the reference in the subsequent deedP9 to a “ right of path four cubits wide running from the public lane onthe north along the eastern boundary of the northern land ” is to the samepathway reserved in P5 and excluded from the land conveyed on P8,.and that the learned District Judge was wrong in thinking that thereference was to a different path shown in Flan FI as the easternboundary of lot 8 and comprised of lot 9. With this contention too Iagree. But even so, it is quite clear that the pathway granted on the-deeds P5 and F8 cannot possibly fall within lots 2 and 3 but it must-form the eastern, boundary of those lots. Nor can the pathway fallwithin lot 4 (which is on the east of lots 2 and 3) since lot 4 is said to-fonn a part of the extent alienated by Vinasy in favour of the 3rddefendant on P4 which is earlier than P5. But according to the planFI, lots 2 and 3 on their eastern side abut on lot 4 and there is nothing-in between in the nature of a path, nor are there traces of a path on.lots 2 and 3 or on lot 4.
It is important in this connection to note that according to the plaint*and also the statement made by the plaintiff before the surveyor who-prepared the plan PI, the right of way claimed is a defined path six feetwide over lots 2 and 3 (on the eastern side) connecting XYZ. Although Xis at the southern extremity of the by-lane (lot 5) which leads up to the>
WEERASOORr?"A, J.—Thambiah v. Sinriathamby
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public lane on the north, there appears to be no direct access from theby-lane to lot 2 because of the intervening boundary fence of lot 2. But(here is direct access from lot 4 to the by-lane at its southern end.
Although the plaintiff came into Court on the footing that the right of•way claimed by him was over lots 2 and 3, he seems to have been intwo minds about it at the time of the trial, for his evidence refers onlyto his having gone across lot 4 as a means of access from the public laneto his land on the south. In re-examination he stated categorically :" Ever since I understood things we have been using the path to the eastof the 2£ lachams (land) as access to lots 6 and 7 Since lots 2 and 3now form the “ 2i lachams ” land, it is clear from the plan Pi that eastof that land is lot 4. While the 3rd defendant probably had no objectionto the plaintiff going across lot 4 (in which the well shares in common issituated) it is obvious that he would have strongly resented any attempton the part of the plaintiff to go over lot 2 which is the 3rd defendant’sresiding land. That land, even on the plaintiff’s evidence, is separatedon its eastern side from lot 4 by a fence.
In the view of the trial Judge the plaintiff was content to use the pathshown as lot 9 on the extreme east of lot 8 as the means of access fromhis land to the public lane until in more recent times he acquired bypurchase (on 3D2 of 1952) a share in the northern land shown as lot 1 inPI a-nd which is situated between lot 2 and the public lane. Undoubtedlyin order to reach his newly acquired land from his land on the south itwould have been easier for the plaintiff to cut across lot 4 than go alonglot 9. But the fact that he did so in no way advances his case that he isentitled to a right of way over lots 2 and 3. In my opinion the learnedtrial Judge was correct in holding that the plaintiff failed to establish hisright to a pathway along XYZ, even though I do not agree with all hisreasons for coming to that conclusion.
In addition to the pathway given in P5, certain reservations were alsowiftdfl in favour of the grantee relating to a share of a well and the“ thoorvai ” land both of which, it is common ground, are situated inlot 4 in Plan PI. At the hearing before us Mr. Chelvanayakam concededthat the present owners of the land sought to he partitioned are entitledto the rights in the well and the “ thoorvai ” land as reserved in P5, andMr. Thiagalingam invited us to make a specific declaration in favour ofthe plaintiff in regard to those matters. But, as indicated earlier, I donot see how in a partition action such a declaration can be made inrespect of a land outside the subject matter of the action. In theunlikely event, however, of a dispute arising in the future as regards therights of the plaintiff to a share of the well and the “ thoorvai ” land onlot 4 in plan Pi, I apprehend that nothing that has happened in thepresent case will preclude bim from vindicating those rights in a properlyconstituted action.
The appeal is dismissed with costs.
SAjffsos*!, J.—I agree.
Appeal dismissed.